Internet Shutdowns: The Togo Ruling and East Africa
The ECOWAS Court treated internet access as part of the practical ability to speak and receive information. The Togo case is strongest where a government cannot point to a clear law for a shutdown; its East African lesson is to test the legal basis, evidence and scope of any restriction.
Contents
The shutdown and the people affected
The legal questions
What the ECOWAS Court decided
The rule: access, expression and legality
A proportionality lesson with an
important limit
How the applicants framed the case
What the case means in East Africa
Digital restrictions after Togo
A practical litigation and policy guide
Why the decision remains useful
The shutdown and the people affected
Amnesty International Togo and Others v Togolese Republic
(ECW/CCJ/JUD/09/20) [2020] ECOWASCJ 59 (25 June 2020) is a leading African
regional decision on state-ordered internet shutdowns. The ECOWAS Community
Court of Justice sat as a three-member panel: Justice Gberi-Be Ouattara
presided, Justice Dupe Atoki was a member and Justice Keikura Bangura was the
rapporteur. The eight applicants were seven civil-society organizations working
on human rights, media, torture prevention, consumer affairs and civic education,
together with journalist and blogger Houefa Akpeda Kouassi. The Court’s
published judgment does not record a dissenting opinion.
In August and September 2017, protests took place in Togo over
constitutional changes and presidential term limits. Internet access was
restricted in two periods, from 5 to 10 September and again from 19 to 21
September 2017. The State did not deny that connectivity had been cut. It said
that public security required the measure because the protests and online
speech risked serious disorder. The applicants said the blackout obstructed
their work, prevented the journalist from communicating, and interfered with
people’s ability to seek, receive and share information.
The applicants did not limit the case to abstract concern about a
future policy. They described concrete effects on their organizations and
journalism, then asked the ECOWAS Court to address the legality of the shutdown
under the African Charter, the International Covenant on Civil and Political
Rights and the Revised ECOWAS Treaty. The case also involved an amicus
submission by the United Nations Special Rapporteur on freedom of opinion and
expression, David Kaye. The Court heard the merits and issued its judgment on
25 June 2020.
The legal questions
The Court considered three questions: did it have jurisdiction to
hear the case; did the applicants have standing; and did Togo violate their
freedom of expression by shutting down internet access? Under Article 9(4) of
the 2005 Supplementary Protocol to the ECOWAS Court, the Court can hear
human-rights claims arising in a Member State. Article 10(d) sets conditions
for individuals seeking relief, including that the application not be anonymous
and that the same matter not be pending before another international court. The
State argued that the organizations were not natural persons and were not
direct victims, and that the journalist had not adequately identified the
capacity in which she sued.
On the merits, the Court had to decide what legal protection applied
to internet access and whether the government’s national-security explanation
was enough. Article 9 of the African Charter protects the right to receive
information and the right to express and disseminate opinions within the law.
The applicants said that the State had interfered with both by cutting
connectivity and had not identified a law authorizing the measure. Togo relied
on security concerns and public order. The dispute therefore centered on an
essential rule-of-law question: can a public authority limit a right when it
cannot show the legal provision that permits the specific restriction?
The applicants also sought non-repetition measures and legislation
with safeguards. A declaration alone may not prevent a later shutdown, so they
asked the Court to address the past breach and require a more controlled legal
framework for future restrictions.
What the ECOWAS Court decided
The Court held that it had jurisdiction and declared the application
admissible. It accepted that the seven organizations could bring the claim
because they relied on internet access to perform their work and had an
interest and right worthy of protection. Corporate or non-natural persons can
rely on freedom of expression in circumstances where that right applies to
their activities. The eighth applicant, a journalist, had standing because the
shutdown affected her ability to work and express herself. The Court thus
rejected the State’s effort to confine regional human-rights standing to
natural persons alone.
On the merits, the Court described internet access as a derivative
right: it is not, in the judgment’s formulation, a freestanding right expressly
written into the Charter, but it is a platform that enables the exercise of
freedom of expression. Because access is integral to the ability to speak, seek
and receive information, it requires legal protection. An interference with
access must therefore be grounded in law that specifies the grounds on which
the State may act. The judgment treated a shutdown as a rights interference,
not merely a telecommunications management choice.
The Court acknowledged that national security can be a legitimate
reason for restricting some rights. But it held that a security claim does not
dispense with legality. Togo had not identified legislation in force at the
time that authorized an internet shutdown on the grounds relied upon and under
defined conditions. The Court therefore found a violation of Article 9 of the
African Charter. Its legal conclusion turned on the absence of a lawful basis
for the measure. It did not hold that governments can never restrict
connectivity, nor that calling an action a security measure is enough to make
it lawful.
The orders required Togo to take necessary measures to prevent the
same situation recurring and to enact and implement laws, regulations and
safeguards consistent with international human-rights standards. The Court also
ordered compensation of 2,000,000 CFA francs to each applicant. The Court
refused the applicants’ broader relief as pleaded in one part of their
application, but it still granted declaratory, preventive and compensatory
remedies. That distinction matters when explaining the outcome: not every
requested form of relief was granted, yet the applicants secured a finding of
violation and meaningful orders.
The rule: access, expression and legality
The core rule is that when government action cuts off or materially
blocks internet access, and thereby interferes with expression or access to
information, the State must point to a law that authorizes the interference and
defines the grounds on which it may be used. The government must show more than
the existence of a serious public concern. Its authority must be legally
available, and the decision must be capable of being tested against the
protected right. An order given informally to network operators, a general
appeal to security or a law enacted after the shutdown cannot automatically
supply the missing legal basis for the earlier act.
The importance of that principle is practical. A clear law can
identify who may order a restriction, what threshold must be met, which
services may be affected, how long the measure can last, what notice or reasons
must be given, and how a court or regulator can review it. Without such rules,
an affected person may be unable to know whether a shutdown was authorized or
challenge the official who ordered it. Legality makes state power visible and
reviewable; it is the first protection against arbitrary restrictions.
The Court’s treatment of access as derivative also makes the right
technologically adaptable. The African Charter protects expression without
listing every tool through which people communicate. If people use the internet
to publish news, speak with others or receive information, interference with
connectivity can burden Article 9 even though the treaty predates the modern
web. That reasoning can apply to mobile networks and other communications
systems when the facts show that the restriction obstructs protected speech or
information exchange.
A proportionality lesson with an important limit
The case is often described as a proportionality decision. That
description should be qualified. The ECOWAS Court did not conduct a lengthy,
structured proportionality analysis comparing the shutdown’s scope, duration,
necessity and less restrictive alternatives against a fully evidenced security
record. Its decisive holding was that the government had not shown a law
authorizing the shutdown. In other words, the judgment’s strongest ratio is
legality. Necessity and proportionality remain important questions under
international rights standards, but the Court did not have to resolve each one
to find a Charter violation.
This does not make the case less useful. It gives lawyers a clear
first question and a way to avoid being drawn into speculation about whether a
blackout “worked.” If there was no law in force, with sufficiently clear
grounds and safeguards, then a claim of good intentions or public danger cannot
cure that defect. If a State does identify a law, a later case should ask
whether it is accessible and precise, whether the objective is legitimate,
whether the measure is necessary in a democratic society, whether narrower
steps could address the same risk, and whether the public authority gave
reasons and permitted review.
How the applicants framed the case
The applicants presented the measure as an acknowledged State action
with direct effects on their protected work. That helped avoid a dispute about
whether the shutdown had happened at all. They connected their reliance on the
internet to their roles as human-rights organizations and as a journalist, and
tied the interference to Article 9 of the African Charter. They also challenged
the absence of a law at the time and argued that later legislation could not
retroactively validate what had already occurred. The State’s concession that
access had been cut meant the contest shifted to standing, justification and
remedy.
The standing argument was particularly effective because the
organizations did not claim abstract authority to represent every internet
user. They explained that internet access was a tool of their own work and that
the interruption impaired their expression. The journalist separately described
harm to her ability to report and work. The Court used its earlier reasoning in
Dexter Oil v Republic of Liberia (2019) and other ECOWAS decisions to accept
that legal persons may invoke rights, such as expression, that attach to their
activities. For future public-interest litigation, an organization should
identify its own affected activity and evidence rather than rely solely on its
mission statement.
For government counsel, the defense based on national security did
not succeed because the State could not identify the controlling law. A more
complete legal defense would have to produce the actual legal instrument, show
that it was in force at the relevant time, explain who made the decision and
demonstrate compliance with procedural safeguards. It would also need evidence
linking the particular restriction to the stated risk. A broad assertion that
protests could turn violent does not explain why every user had to lose access
or why targeted policing, prosecution of specific unlawful content or
geographically limited measures would not suffice.
What the case means in East Africa
The ECOWAS Court’s judgment binds the parties within the ECOWAS
legal order; it does not bind Kenya, Uganda, Tanzania or Rwanda as a regional
court decision. Its reasoning is persuasive in East Africa because the African
Charter binds relevant States and protects the same rights, while many national
constitutions protect speech and access to information. A lawyer in East Africa
should cite it as persuasive authority, then anchor the claim in the
Constitution, legislation and binding decisions of the relevant domestic court
or the East African Court of Justice where jurisdiction exists.
Uganda offers a current and concrete comparison. Article 29(1)(a) of
the Constitution protects freedom of speech and expression, and Article 41
protects access to information held by the State, subject to law. Article 43
permits limitations that are acceptable and demonstrably justifiable in a free
and democratic society. The Uganda Communications Act 2013 establishes the
Uganda Communications Commission and its regulatory functions; whether a
specific communications power authorizes a particular shutdown must be tested
against the statutory text, the Constitution and the facts, not assumed from
the existence of a regulator.
The nationwide internet suspension around Uganda’s January 2026
elections prompted a High Court challenge by Michael Aboneka and Raymond
Amumpaire, who argued that the restriction lacked a clear legal basis and
violated constitutional rights. As of this article’s research date, the
material located showed a pending challenge rather than a final merits ruling.
The Togo judgment can help frame the question for that litigation: which law
authorized the instruction, what conditions did it impose, who made the decision,
what evidence supported it, and was a complete shutdown the least
rights-restrictive means? It does not decide the Ugandan case in advance.
Kenya’s Constitution protects expression and media freedom in
Articles 33 and 34, with Article 35 guaranteeing access to information. The
Access to Information Act 2016 gives effect to the information right. The
National ICT Policy 2019 recognizes social media use as an extension of
expression while identifying lawful limits such as incitement and hate speech.
Those instruments do not, by themselves, answer whether a network-wide
restriction is lawful. A Kenyan challenge should identify the specific statutory
power invoked and test it against constitutional safeguards, including the
requirement that any rights limitation meet Article 24’s standards.
Tanzania’s Constitution, particularly Article 18, protects
expression and the right to seek, receive and disseminate information; the
Electronic and Postal Communications Act 2010 and related regulations govern
communications services. In Rwanda, Article 38 of the Constitution protects
freedom of expression and access to information, while Law No. 04/2013 relating
to access to information provides a statutory disclosure framework. These
national rules operate differently and cannot simply be copied from one country
to another. The regional lesson is narrower and stronger: the State must
identify the applicable law and demonstrate how it permits the exact
restriction imposed.
Digital restrictions after Togo
Later ECOWAS decisions have developed the Togo principle. In
Association des Blogueurs de Guinée v Guinea (ECW/CCJ/JUD/04/22), the Court
addressed restrictions on internet services and Facebook and treated broad
blocking measures as a serious interference with expression and access to
information. It cited Amnesty International Togo while considering whether
restrictions were provided by law and proportionate. That later case helps
clarify an analytical step that the 2020 judgment did not explore at length:
even where a State asserts a legitimate aim, a blanket restriction may fail
because it is wider than needed.
A practical litigation and policy guide
A digital-rights claim should preserve evidence: the outage’s date,
time and location; provider and affected services; screenshots and public
notices; and any government or regulator announcement. Independent network
measurements can establish the restriction’s scope. Journalists and
organizations should record interrupted work, while users can describe effects
on communication, education, health information, work or civic participation.
The pleading should identify each right and its source. For an
Article 9 claim, explain whether the restriction prevented speaking,
publishing, receiving information or communicating with others. For a media
claim, show the effect on reporting, sources and public dissemination. For
access to information, identify the kind of information sought and the
inability to obtain it. Plead jurisdiction and standing separately from the
merits. The Togo Court’s acceptance of organizational standing helps organizations
that can show direct operational impact, but applicants should still avoid a
conclusory assertion that they speak for everyone affected.
Then require the State to identify the law. Ask whether the enabling
instrument existed on the date of the order, whether it authorizes a complete
shutdown or only targeted service restrictions, what decision-maker acted, what
factual threshold was met and what notice or review was available. If a law
exists, assess its clarity and safeguards. Challenge a later statute’s use to
defend an earlier event. In the alternative, argue that a restriction was
unnecessary or disproportionate even if the State had power to act. This
layered approach preserves the simple Togo point while preparing for a case in
which legality is not the only weakness.
Remedies should be practical. Seek an order requiring disclosure of
the shutdown directive, a declaration of violation, compensation supported by
evidence, public reporting, a prohibition on repetition without a lawful
procedure, and safeguards such as independent review, short time limits and
transparent criteria. If the threat is imminent, seek interim relief before
access is cut, because compensation after an outage cannot restore a lost
election-day report, urgent medical communication or time-sensitive public
warning. For a systemic claim, propose measures that remain workable during a
genuine emergency, including narrow targeting, renewal only on stated evidence
and prompt judicial supervision.
For governments and network operators, the decision offers a
compliance design. A lawful framework should identify the authority, purpose,
threshold, process, duration, territory, affected services, review mechanism
and recordkeeping obligation. Orders should be written, reasoned and
time-limited. Network operators should receive a verifiable legal instrument
and retain records of how they complied. The public should be told what
happened and when ordinary access will return, unless a specific, reviewable reason
justifies withholding a detail. These safeguards protect users while allowing
authorities to respond to genuine threats through accountable means.
Why the decision remains useful
Amnesty International Togo is useful because it converts a technical
event into a legal question ordinary people can understand: who had authority
to disconnect the public, and where is the law that gave it? The Court’s answer
was that a State cannot rely on security language alone. The law must exist,
must specify the grounds and must provide the conditions under which the right
may be restricted. The judgment also recognizes that organizations and
journalists can be victims when they depend on the internet to speak, report
and carry out their work.
Its limits are part of its value. The decision did not announce an
absolute right to uninterrupted access, and it did not perform a full
proportionality test. It established a firm legality floor. Later claims can
build on that floor by proving lack of necessity, overbreadth, excessive
duration or the availability of narrower tools. This makes the case usable
across very different national systems without pretending that ECOWAS law
governs East Africa.
For East African readers, the case is a persuasive regional
authority to place beside constitutional text and domestic precedent. It is
especially timely where election-period restrictions, online regulation or
emergency orders affect whole populations. Lawyers should make the legal source
and factual record precise; policy makers should create transparent and
reviewable rules; service providers should preserve the orders they receive;
and readers should know that a network shutdown can interfere with protected
expression even when the State describes it as a technical or security measure.
The Togo ruling makes that principle concrete and gives future courts a clear
starting point.
Sources Mentioned in This Case Analysis
Amnesty International Togo and Others v Togolese Republic (ECW/CCJ/JUD/09/20) [2020] ECOWASCJ 59 (25 June 2020). Supplementary Protocol A/SP.1/01/05 amending the Protocol on the Community Court of Justice, ECOWAS, Articles 9(4) and 10(d); Revised Treaty of ECOWAS, Article 66(2)(c). African Charter on Human and Peoples’ Rights, Article 9; International Covenant on Civil and Political Rights, Article 19; UN Human Rights Committee, General Comment No. 34 (2011). Dexter Oil v Republic of Liberia (2019) ECW/CCJ/JUD/03/19; Moussa Leo Keita v Republic of Mali (2007) ECW/CCJ/JUD/03/07. Association des Blogueurs de Guinée v Guinea (ECW/CCJ/JUD/04/22). Constitution of Uganda 1995, Articles 29, 41 and 43; Uganda Communications Act 2013. Constitution of Kenya 2010, Articles 24, 33, 34 and 35; Access to Information Act 2016; National ICT Policy 2019. Constitution of the United Republic of Tanzania 1977, Article 18; Electronic and Postal Communications Act 2010. Constitution of Rwanda (as amended), Article 38; Law No. 04/2013 of 08/02/2013 relating to access to information. Uganda High Court challenge by Michael Aboneka and Raymond Amumpaire concerning the January 2026 election-period internet shutdown; no final merits decision was located as of the research date.
Suggested Citation
Ronald Serwanga, “Internet Shutdowns: The Togo Ruling and East Africa” East Africa Legal Insight (22 October 2026).